A good construction claim submission should flow and be easily understood. PETER MCCARTHY, Principal, Conlex Consulting, writes that quality, not quantity matters and that you should never include irrelevant information.

As a claim consultant, I often get asked for advice on how to formulate a construction claim or asked to review claim submissions to improve their chances of success. I understand that sitting down to start drafting a construction claim can be daunting, often not knowing where to start. To support you in this task, I have put together some key points to consider, which I am sure will set you on the right track.

PRESENTATION

Very often, the receiver of a claim submission may not be too pleased when it lands on its desk, and the document could quickly find its way well down the receiver’s to-do list. Therefore, when presenting a claim, you must make it as easy as possible for the receiver to review it. Well-presented, well-structured and user-friendly claim submissions will go a long way to achieving this.

Claim submissions should ideally be presented in two volumes where:

• Volume 1 will contain the story or narrative of the claim, which deals with the project, sets out the circumstances of the claim, demonstrates the effects of the claim and outlines the basis of any supporting documents that have been included to demonstrate the effects and quantum of the claim.
• Volume 2 will include appendices containing supporting documents referred to above, such as project records, correspondence, programmes, photographs and the like.

The advantage of presenting the claim in this format is that the reviewer can read the narrative and the supporting information side by side, making it easier for the reviewer to digest what is being said.

As the saying goes, ‘don’t judge the book by the cover’, but very often, that is what a reviewer will do when presented with a claim. So, if the claim is poorly put together, the submission is off to a poor start in convincing the reviewer that the claim’s author is professional and the content is credible. To be judged professionally, a submission must:

• Have a good quality, professional-looking cover
• A contents page that helps the reviewer quickly navigate its way around the document
• Include an element of signposting explaining to the reviewer the format of the submission
• Clearly labelled tabs and dividers to separate the various sections and appendices to make the claim easily and quickly accessible
• Spacious layout to allow the reviewer to take notes as it digests the content
• Easy-to-read font
• Headers and footers containing the relevant party names, document names, page numbers, and date (if necessary)
• Ensure the various sections of the submission are sequenced logically, clearly identifiable and correctly cross-referenced to each other.

EASY-TO-READ CLAIM NARRATIVE

Following a well-presented claim submission, the narrative must be drafted in a way that’s easy for the reviewer to read and understand. The following are some points that should be considered:

• A good claim submission should flow and be easily readable and understood. It needs to have a beginning, a middle and an end. The beginning will set the scene for the reviewer by explaining the background of the project and the general circumstances relevant to the claim. The middle explains the event that has occurred, the cause of the event, its effect, and where you are entitled to relief under the contract. The ending will be a logical conclusion in which relief under the contract and quantum are summarised, explaining to the reviewer what the outcome of the claim or response should be. Failure to correctly arrive at a logical conclusion could result in the reviewer arriving at its own conclusion that might not be in your favour.
• The use of abbreviations should be avoided, or if used, their meaning should be explained when first used. It is safer to assume that the reviewer will not understand an abbreviation that you have regularly used during the course of a project. Should the claim submission get referred to someone beyond the reviewer, i.e. a dispute resolver, that person will not understand the meaning of abbreviations without meaning.
• Avoid legalistic language. Be mindful of your audience, who may not have a legal background. The use of this type of language can negatively impact understanding of the narrative. It is better to keep the language simple and to the point.
• Avoid ambiguities. For example, when referring to the various parties involved in the project, rather than referring to them as ‘them’ or ‘they’, it is better to refer to the parties in the same way as they are referred to in the contract, such as Employer, Contractor and Employer Representative/Architect etc. The same applies when mentioning various contract documents, i.e., drawings and specifications, etc.
• Use quotations in the narrative for maximum impact. For example, if referring to extracts from the form of Contract to prove entitlement, include this extract as a quotation to add more weight to the point you are trying to get across.
• Don’t rely on other documents to tell your story. Don’t draft your claim in a way that the reviewer has to shift through large quantities of other paperwork to understand your argument. It is essential the claim submission is read and understood without making constant reference to other documents. A reviewer who is forced to refer to other documents will quickly lose interest in the claim and will not be predisposed to your argument. Make it as easy as possible for the reviewer to follow your argument.
• Beware of information overload. Following on from the above point, when referring to other documents in your narrative, ensure that only the essential information from the document is reproduced. For example, if referring to a letter, seek to paraphrase its contents within the narrative rather than quote the entire letter. A copy of the letter can be included in the appendices, and the narrative can include a cross-reference to its location so that the reviewer can examine the remaining content should it so wish. Lazily dumping whole extracts of other documents will cause the main points of your story to be lost and serve to disinterest the reviewer.

STANDALONE CLAIM SUBMISSIONS WORK BEST

On receipt of a claim submission, if a reviewer cannot find the documents you refer to or has to request additional information to better understand your case, the reviewer will not be well disposed towards your submission. More so, if the submission was being reviewed as part of a dispute resolution process, the dispute practitioner may well take the view that a failure by you to include such documentation means that your claim has not been substantiated, and the dispute practitioner may well reject your claim. For that reason, it is important that your claim submission includes everything that the reviewer will need to determine the merits of your claim.

When drafting your claim submission, and to ensure the submission stands on its own two feet, ask yourself, ‘Could someone with absolutely no knowledge of the project and the issues complained of fully understand it?’. While the claim document may be going to someone who has prior knowledge of the issue[s], the claim submission may well get transferred up the line to others within or outside an organisation who will have difficulty understanding the argument being made if all documents being referred to in the narrative are not included.

Your appendices should, therefore, include items such as:

• Project records referred to in the narrative, ie, photographs, allocation sheets, etc.
• Copies of all correspondence referred to in the narrative
• Programmes used to support your case
• Copies of drawings referred to in your narrative
• Relevant extracts of the form of Contract relied upon
• Calculations used to back up your quantum and copies of invoices to substantiate prices claimed
• Minutes of meetings referred to in the narrative
• Relevant extracts of the specification referred to in the narrative.

Remember, it’s quality, not quantity. Avoid including irrelevant information. Getting the reviewer to wade through large quantities of irrelevant information certainly will not make life easy for the reviewer and can only weaken your chances of success. Therefore, the claim drafter must decide what is relevant and should be used in the submission and what is not relevant and should be discarded. Information overload will weaken the message you are trying to convey and distract the reviewer from that message.

GET AN INDEPENDENT OBSERVER TO REVIEW THE CLAIM DOCUMENT BEFORE IT IS SUBMITTED.

So, you’ve put together the claim document. What next?

Many professionals putting together a claim submission will have been deeply involved in the project, have lived and breathed the issues for long periods, and, in some cases, may have a strained relationship with the person tasked with reviewing the document. This can make it difficult for the claim drafter to notice what is important about the issue being complained of, where they can’t see ‘the wood from the trees’ or have assumed that the reviewer has the same knowledge as them about the issues. This could result in the claim drafter failing to clarify matters and missing out on minor but essential information.

When the narrative and supporting appendices are complete, it is, therefore, prudent to have an independent observer review the submission.

This person should have:

• Little or no knowledge of the issues complained of and,
• Ideally have the professional expertise to understand and advise on improvements to be made to the submission.

This independent observer should:

• Put themselves in the shoes of the reviewer and,
• After reviewing the draft submission, advise the author on unclear sections of the submission, incorrect grammar, inappropriate language, unsubstantiated statements and the like.
• Check that the supporting documentation in the appendices is correctly referenced in the narrative
• Ensure that the narrative correctly explains the significance of the supporting information and
• Ensure that cross-referencing between the narrative and the supporting appendices is correct.

Proofreading the claim submission yourself should be avoided, as you will be inclined to read what you think you have written rather than what you have actually written. Getting your claim document proofread by an expert independent observer will ensure you have a submission the reviewer can clearly follow and understand, thus increasing your chances of success.

ABOUT PETER MCCARTHY

Peter McCarthy holds dual expertise in Quantity Surveying and Construction Law and is the founder and owner of Conlex Consulting, which supports clients with pre-contract review, post-contract support, preparation and negotiation of claims, dispute avoidance and dispute resolution. Peter is a fellow member of the Society of Chartered Surveyors of Ireland and the Chartered Institute of Arbitrators and is an approved Adjudicator and Conciliator on the SCSI panels.

To learn more, email peter@conlex.ie or visit www.conlex.consulting